Articles Posted in Criminal Defense Overview

There were once famous words that were uttered in law school classrooms and courtrooms across the country and they sounded like this: “Let the punishment fit the crime.” While that sounds like a logical phrase, what happens when punishment grows out of control and we end up with economic hardship within the prison system? Today, we will explore the economic issues that the Michigan Department of Corrections is facing and examine how House Bill 5078 has the potential to change the prison system. In addition to exploring the issue, we will speak with leaders in the criminal defense sector and see how the economic argument can change the sentencing aspect. iStock_000003965027_Large-2-300x200

When we review the legislation from a global view, we see that House Bill 5078 was introduced by Rep. Al Pscholka (R) with the goal of saving the state of Michigan nearly $6 million per year in healthcare for those that are incarcerated. The plan would be to place these prisoners in nursing homes due to the costs that is associated with housing them. As Pscholka told the Associated Press, “A lot of them are bed-ridden. Some of them are taken advantage of or abused in prison, and this is just a better place for them to be.” While Pscholka’s bill has presented ire from many, the logic connected to the verbiage has resonated within the criminal defense sector and caused an ongoing debate.

Scott Grabel of Grabel and Associates is known as the leader in criminal defense within the state of Michigan. When asked about the bill, Grabel responded by saying, “The facts are undisputed. When we review statistics from the Michigan Department of Corrections, we see that it will cost the state of Michigan at least 5-times as much to house a sickly inmate and many older inmates fall into this category. While it would take some structuring from the healthcare sector, we have a possibility to improve the quality of life for many of the elderly while simultaneously saving our state millions of dollars. This is the classic example of a win-win scenario.”

One topic that is often at the center of law school lectures but is not an issue that garners a great deal of publicity is the mistrial. The mistrial is one of the most difficult motions that any litigator will ever face should they decide to go that route. The key to a successful mistrial motion is the concept of prejudice but to display that a party has been disadvantaged is easier said than done. Case law, litigators, and the general public are often left with a great deal of confusion when addressing the issue. Our goal today will be to provide insight on the topic along with commentary from leaders in the field. Let’s begin by discussing what the black letter law states and then delve into the shade of gray which is where the issue lives.

We start this discussion by reviewing case law on the topic. In the case of Wolfe v. Peery, we find that: “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review trial court ruling denying a mistrial.” While the case law says one thing, the application of the motion is an entirely different process. Scott Grabel of Grabel and Associates is the leader in criminal defense in the state of Michigan. Grabel and other leaders in the field provide commentary on the issue.law and justice

Grabel stated, “Many attorneys like the idea of bringing a motion for a mistrial but do not understand intricate their motion must be. In fact, if you are banking on winning the motion you are putting your client in a precarious situation. Case law indicates that a mistrial is only granted if the court is apprised of prejudice that it deems to be incurable. In the simplest of terms, the court is reluctant to grant such a motion. Our motion writers have found a great deal of success, but that is because they look at the issue globally which is an unusual but effective process.”

Michigan criminal defense attorneys know all too well that many defendants, regardless of their innocence or guilt, accept plea bargains (plea deal, agreement) offered by prosecutors. Why would anyone who is innocent ever agree to such a deal? Why not plead not guilty and go forward to trial? This is a question many people who have not been put in this position ponder, but unfortunately it’s a terrible truth. The fact is, our criminal justice (or injustice, as you may want to view it) is so unstable that those who are completely innocent could be found guilty at trial. If you were in this position, would you rather accept a plea deal that results in two years in prison, or go to trial knowing you could possibly face 10, 20 or even more years behind bars if for some inconceivable reason you were found guilty? Exactly. iStock_000000341623_Large-2-300x200

Defendants in any criminal case are presumed innocent until found guilty beyond a reasonable doubt, however often this is not the case. Jurors often form their own opinions based on emotions or feelings, rather than indisputable evidence. The fact is, among convicted felons between two and eight percent are innocent individuals who accepted plea agreements. It’s easy to assume many criminal cases go to trial, however the hard truth is that 94% of state convictions occur because the defendant accepted a plea deal, or in other words pleaded guilty to a lesser crime. Sure, some are guilty – but considering up to eight out of 100 who are convicted because they accepted plea deals, it’s easy to see there are many innocent folks serving time behind bars – not to mention the ruin of their careers, reputations, even relationships.

Why do those who are innocent ever agree to plead guilty? It’s simple, really. Most fear the worst possible outcome at trial. In other cases, going forward toward trial often means months or even years in jail awaiting trial, considering the delays and postponements. For most people, taking weeks or months off from work just isn’t feasible financially, and even when a case does eventually go to trial it could possible end in a hung jury, which in many cases means yet another trial. Think of those who have families, young children or teens, responsibility; waiting for an interminable length of time to go to trial and even then not knowing what the outcome could be is simply unimaginable.

One concept that is often overlooked by lawyers in the criminal field is the importance of a “Walker Hearing”. Brought to us in the case of People v. Walker (1), a “Walker Hearing” is used when interpreting whether or not a confession was done in a voluntary fashion. iStock_000013709005_Medium-300x210

In the state of Michigan, for a confession to be deemed valid, the defendant must have made it in a knowingly, intelligently and voluntary fashion. The element of a coerced confession is one that can be the difference between freedom and incarceration because if a defense counsel can display the confession was done in an involuntary fashion, the statement will be suppressed through the exclusionary rule.

When a defendant claims that the confession was done in an involuntary fashion the judge can hold a hearing to determine voluntariness of confession. The thing that is often misunderstood by practitioners is that the defendant may take the stand and testify for limited purpose of making of record his or her version of facts and circumstances under which confession was obtained. Even with the defendant taking the stand at the “Walker Hearing”, the defendant will still have the option not to take the stand at their trial should the confession be deemed to be admissible because of the protections afforded in both the United States and the Michigan Constitution.

In life, sometimes we make mistakes and sometimes, those mistakes were never warranted in the first place. One way to recapture your reputation is presented with the concept of an expungement. To understand the meaning of an expungement, we need to understand that it is a concept that has the effect of settling aside a criminal conviction that will allow a former defendant to be truthful in job applications and grasp a sense of freedom that they did not after receiving a conviction. iStock_000003965027_Large-2-300x200

While the concept of an expungement is something that is a potential dream come true, the theory of an expungement is far easier said than done. Lawyers such as Scott Grabel have developed a reputation for winning expungements on a regular basis but as Grabel and his team will be the first to tell you, the biggest thing to understand with an expungement is a careful research of the law and making the determination that not all crimes can be expunged. The law to research when looking at expungements is not an overly difficult one to understand but presents an extremely hard concept to apply (MCL 780.621).

One leader in the criminal field is Ravi Gurumurthy, whom practices in Cadillac, Michigan. Ravi has recently won several hotly contested expungement cases in a 200-mile radius. When asked about expungements, Gurumurthy said the biggest mistake that people make is not having their paperwork in place. “The forms that are needed are often get overlooked. A lot of people feel that they can do the process on their own but without a certified copy of their conviction, they stand lose their petition. In addition to this, they need two copies of certified fingerprints completed. While this sounds easy, the majority of people hire lawyers that lose the matter in the preparation. There is no question that the devil is in the details and without details, the only thing that the client will get is an attorney bill that does not equate to success.”

If you’re someone who has been arrested or is under investigation for a crime, you may decide you can represent yourself – or, you may believe your criminal defense attorney can provide you with an impenetrable defense. The fact is, while a skilled Michigan criminal defense lawyer can win many cases despite tough odds, those who are facing charges of rape, drug trafficking, theft, robbery, or even something as seemingly minor as marijuana possession should always expect the unexpected. With a criminal defense case, nothing is ever cut and dried. 68916_law_education_series_2

Most criminal defense lawyers have several battle scars after coming up against surprise verdicts delivered by judges or juries, in addition to the inexplicable “high” of winning even the toughest cases they thought would likely go the other way. Ask any attorney whose practice focuses on defending the alleged “bad guy,” and you’ll find that at times he/she has likely felt the feeling of free-falling from the highest cliff in the world. It’s not unusual for attorneys in the world of criminal defense to experience an exhilarating ride, however we all know what can happen when we come back down to earth – something we never expected.

Even though many who specialize in criminal defense feel right at home in the courtroom, there are countless times attorneys feel almost like they should don a suit of armor to prepare for what will undoubtedly be a tough battle. Great defense lawyers thoroughly prepare for every battle, however when even the toughest, most well-prepared defense ends in defeat, it’s often a case of the old adage “hindsight is 20-20.” Understandably, anyone who is charged with a crime regardless of how minor or serious it may seem wants his or her attorney’s reassurance there isn’t an invisible land mine or “booby trap” ahead.

Let’s be honest here – all people tell lies, whether they have been accused of a crime or not.  We’re all law and justicehuman, however many people are curious as to if criminal defense lawyers represent clients who they know are lying, and if so, why.  Even defendants in a criminal case (particularly those who are guilty) wonder if they should be completely honest with their attorney.  All who are accused of a crime, regardless of how minor or serious that offense is, have the right to remain silent.  In the case of a defendant, he/she may believe that if they do remain silent, the lawyer they have hired will suspect they are guilty.

The fact is, guilty or not, it must be proven beyond a reasonable doubt.

When a criminal defense attorney takes on a case, it’s important to realize that it isn’t the lawyer’s case, but the defendant’s.  Because of this fact, clients should be truthful with their lawyers – otherwise, it is difficult for an attorney to build a solid case and focus on defense strategies that could possibly have some basis in fact, even if the defendant is guilty.  Anyone who is charged with a crime should realize that:

It makes no difference whether you are guilty or innocent.

Your defense attorney is going to take anything you say seriously. Lying to your lawyer will only result in him or her chasing rabbit trails that will not likely result in a solid, effective defense.

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When one hears about the term “Mercy” they are often thinking about the concept of forgiveness and understanding. However, in the world of law, this term has a deceptive meeting that can be the death nail of the defendant in a criminal case. iStock_000003965027_Large (2)

According to the Federal Rules of Evidence, the “Mercy Rule” is a unique mechanism that comes into play when dealing with character evidence. The Mercy rule is a principle of evidence law which allows a criminal defendant to offer character evidence as a defense to a criminal charge. It permits a criminal defendant to introduce evidence of pertinent character traits of the victim because the accused, whose liberty is at stake, may need a counterweight against the strong investigative and prosecution resources of the government.

When we see the Mercy Rule come into play it is generally employed as a tool that the Defendant will attempt to use to gain favor with the jury. While many people do not know is that it is actually the client that will make the decision of whether or not they want to take the stand at their own trial or whether or not they can employ a character witness. With that being stated, many defendants do not realize the danger of placing a character witness on the stand and this writing will help you to be aware of such dangers.

Of all 50 states in the U.S., 20 do not compensate those who are wrongly convicted of crimes and ultimately set free – Michigan is one of those states. However, a bill is on the table that could hopefully change how exonerees are treated if it is voted on by the House and signed by Governor Snyder, which could potentially happen in just a few months. 979960_prison

Unfortunately for individuals who have been wrongly convicted of even the most serious crimes, Senate Bill 291 has been floating around Lansing for 13 years, since 2003. If the bill passes, exonerees would be compensated $60,000 per year for each year spent in prison after being wrongfully convicted. In addition, those wrongly convicted would receive lost wages and other “economic damages” along with attorney fees according to Michiganvotes.org/2015-SB-291.

It seems ironic that while individuals who have been wrongly convicted (and there are MANY) have received nothing all of these years, while parolees have help obtaining housing, clothing, employment, transportation, and more. In fact, the Reentry Program will spend more than $13 million this year paying to help parolees get back on their feet, while those exonerated get nothing – except for heartache, of course.

Anyone with a criminal record knows it can really cause problems in terms of employment, housing, obtaining (or keeping) a professional license, and more. While there are many criminal convictions that can be set aside or “expunged” from your record, there are also some convictions that are ineligible for expungement. Essentially, for those whose conviction qualifies, your public criminal record can be set aside – this simply means you will have a clean record should a potential employer, landlord, lender, or someone else perform a background check. iStock_000003118029_Large (2)

Which criminal convictions cannot be expunged from your record?

Basically, a conviction for those crimes considered the most serious or heinous cannot be expunged from your record. These convictions include:

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